Complainant is Anglo American PLC, United Kingdom, represented by Spoor & Fisher Attorneys, South Africa.
Respondent is Petrus Harmse, South Africa. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Hosting Concepts B.V. d/b/a Openprovider (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2019. On August 21, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 23, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on August 23, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 26, 2019.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 17, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 18, 2019.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 24, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
According to the Complaint, Complainant is a large mining company in operation for more than a century. Founded in South Africa, it is now headquartered in London, United Kingdom but still operates significantly in South Africa. Complainant holds various trademarks for ANGLO AMERICAN and ANGLO, including South African Registration No. 1988/10320 for ANGLO in connection with “material treatment” of ores, minerals, and other items (registered September 28, 1994), and Registration No. 2011/32943 for ANGLO in connection with precious metals and other items (registered June 28, 2018). Annexed to the Complaint are examples of third parties referring to Complainant and its mining business as “Anglo Group” and as “Anglo American.”
The Domain Name was registered on June 6, 2019. The Domain Name does not resolve to an active website. It appears from the record, however, that Respondent has used the Domain Name for email purposes. According to Complainant, a “concerned third party” sent Complainant a text message he had received. The text reads: “AngloGroup open tender. All open tenderers can participate in this great opportunity by sending Ck documents to tender@[...]”
Complainant made various attempts to make contact with Respondent, but the latter never responded to the former’s messages. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark ANGLO through registration and use demonstrated in the record. The Panel also finds the Domain Name to be confusingly similar to that mark. The Domain Name incorporates the mark in its entirety and adds the descriptive word “group” and the letters “za” (a generic geographic reference to South Africa) to the mark. These additions do not prevent the confusing similarity between the ANGLO mark, held and used by a South African business, and the Domain Name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.
Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not come forward in this proceeding (or earlier, in response to Complainant’s communications) to articulate why it registered the Domain Name or otherwise explain his bona fides. As such, the undisputed record in this case indicates that Respondent registered the Domain Name with knowledge of Complainant and its ANGLO mark, and used the Domain Name to create the false impression of an affiliation between Complainant and the sender of the text message soliciting information from the recipient who may be interested in what appears to be an investment opportunity involving Complainant. That is in all essentials a phishing scam. Respondent has not denied it.
Complainant has established Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. The Panel incorporates here its observations above in the “rights or legitimate interests” section. It is apparent from this undisputed record that Respondent has acted from bad faith motives, as he is most likely engaged in a phishing scam. At a minimum, bad faith under the above-quoted Policy paragraph 4(b)(iv) is established on this record.
Complainant has established Policy paragraph 4(a)(iii). 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to Complainant.
Robert A. Badgley
Sole Panelist
Date: September 30, 2019
Full & Egal Universal Law Academy